Rothell v. Grimes

• Decision Date: 30 November 1887
• Citation: 35 N.W. 392,22 Neb. 526
• Parties: CHARLES L. ROTHELL ET AL., PLAINTIFFS IN ERROR, v. WILLIAM GRIMES, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

35 N.W. 392

22 Neb. 526

CHARLES L. ROTHELL ET AL., PLAINTIFFS IN ERROR, v. WILLIAM GRIMES, DEFENDANT IN ERROR

Supreme Court of Nebraska

November 30, 1887

ERROR to the district court for Johnson county. Tried below before BROADY, J.

REVERSED AND REMANDED.

S. P Davidson, for plaintiff in error, cited: Dinsmore v Stimbert, 12 Neb. 435. Grimes v. Farrington, 19 Neb. 45. Frankhouser v. Ellett, 22 Kan. 127. Bonns v. Carter, 20 Neb. 577. Kay v. Noll Id., 389. Read v. Wilson, 22 Ill. 377. Jones' Chattel Mortgage, Sec. 351. Till's Case, 3 Neb. 262. Roop v. Herron, 15 Neb. 78.

Daniel F. Osgood (Isham Reavis with him), for defendant in error, cited: Herman Chattel Mortgages, Sec. 104. Beal v. Williamson, 14 Ala. 55. Rich v. Levy, 16 Md. 74. Roop v. Herron, 15 Neb. 73. Nixon v. Nash, 12 Ohio St. 647. Belknap v. Wendell, 31 N.H. 92. Wallach v. Wylie, 28 Kan. 138. Winner v. Hoyt, 28 N.W. 380.

OPINION

MAXWELL, CH. J.

In March, 1887, the plaintiffs commenced an action in replevin in the district court of Johnson county to recover possession of certain goods and chattels of the value of $ 400. It is alleged in their petition that under and by virtue of a chattel mortgage made and delivered to plaintiffs on the 11th day of March, 1887, by E. M. McGee and William S. Kearney, and McGee & Kearney, a partnership, to secure a note of $ 2,000, plaintiffs hold a special ownership in and are entitled to the possession of the goods in controversy (particularly describing them); that on and before March 16th, 1887, they were in the lawful possession of said property under said chattel mortgage, and were proceeding to sell said property and apply the proceeds thereof in satisfaction of said debt secured thereby in as expeditious, safe, and judicious a manner as possible in pursuance of said mortgage; that while plaintiffs were thus in possession thereof, on said 16th day of March, 1887, said goods and chattels were forcibly and wrongfully taken from the possession of plaintiffs by defendant in the night time; that by reason of the said wrongful taking of said property, and by reason of the negligent and careless handling of the same by defendant, the same have been damaged to the amount of $ 200; that when so taken by defendant said goods and chattels were worth $ 400, and they filled out and completed the assortment of the stock then being sold under said chattel mortgage by plaintiffs, and by reason of these goods in controversy being so taken, said assortment was broken up and destroyed, and plaintiffs were damaged thereby in the further sum of $ 200; that at the time said McGee & Kearney made and delivered said chattel mortgage they were the owners of all said goods and chattels and said stock of goods, and had a right to sell or dispose of them by mortgage, and at the same time they delivered possession of said goods and chattels to plaintiffs; that all of said property so mortgaged and delivered to plaintiffs, including the goods in controversy, are not sufficient to pay the said debt secured by said mortgage; that defendant now still wrongfully detains said goods and chattels so taken, and has so wrongfully detained the same for more than six hours, to the further damage of plaintiffs of $ 100, making plaintiffs' damages by reason of the premises aggregate the sum of $ 500.

The defendant in his answer denies, 1st. All the allegations of plaintiffs' petition. He alleges that he is sheriff of said county, and as such on March 16th, 1887, he levied on the goods in controversy under an order of attachment duly issued against E. M. McGee and W. S. Kearney as their property, and that he had no notice of any interest or lien, by virtue of a chattel mortgage, or otherwise, of plaintiffs upon said property; that at the time plaintiffs took possession of the goods in controversy, by virtue of a pretended chattel mortgage, E. M. McGee and W. S. Kearney, who gave said pretended chattel mortgage, were indebted in large amounts for goods purchased, and on which said mortgage was given, of which fact plaintiffs were knowing, and said mortgage was given and taken with the intent to defraud, hinder, and delay said creditors; that there is no description in said plaintiffs' mortgage of the property sought to be recovered, and therefore plaintiffs are not entitled to recover in this action; that said pretended mortgage was given without consideration, and void as to judgment creditors, and therefore void as to this defendant; that said mortgage was given to secure an amount largely in excess of any genuine bona fide indebtedness of E. M. McGee and W. S. Kearney, mortgagors, to plaintiffs, and was taken by plaintiffs and given by said mortgagors with the intent to hinder and delay judgment creditors of said mortgagors in the collection of their debts, and therefore void as to the judgment creditors and this defendant.

The plaintiffs in their reply to said answer admit that defendant is sheriff of said county, and that their claim to said property is by virtue of a chattel mortgage executed by E. M. McGee and W. S. Kearney, but allege that said mortgage was given to secure a valid debt, and taken in good faith to secure said indebtedness, and without any intention to hinder and delay, or defraud the creditors of said McGee & Kearney, and they deny each and every other allegation in said answer contained.

On the trial the cause was submitted to the court, which found for the defendant, that the value of his possession was $ 176.55, and that his damages were $ 1.

The plaintiff then filed a motion for a new...